By Neville Ladduwahetty Courtesy The Island

July 26, 2016, 7:50 pm

The United Nations system that operated during the genocide in Rwanda was the Human Rights Commission. The UN system that operated in 2009 when the LTTE took Civilians hostage was the Human Rights Council. In 2009 the Human Rights Council did not realize that the provision in its mandate for protection included not only prevention but also to meet emergencies. Unlike in Rwanda the Council had not 100 days, but nearly 5 months to marshal the combined influence of several democracies in which the Tamil diaspora resided to bring pressure on the LTTE to release the civilians. But this did not happen. The inability of the Human Rights Council to live up to the provisions in its mandate is the primary cause for the violations. For this the Council has to be held accountable.

The United Nations General Assembly by Resolution 60/251 setup the Human Rights Council in April 2006. Article 1 of the above Resolution states that the decision to establish a Human Rights Council based in Geneva was to replace the Commission on Human Rights that was setup in 1946. Article 1 states that “the Assembly shall review the status of the Council within five years”.However, Article 16 states that the “Council shall review its work and functioning five years after its establishment and report to the General Assembly’.

The fact that the Human Rights Council is expected to review its own performance in respect of promoting and protecting human rights is flawed to start with,because a monitor that monitors itself has little credibility. For instance, could anyone expect the Council to admit that it failed to live up to the expectations depicted in Articles 2 and 3 of the mandate to the Council cited below? Not likely.

Article 2: “Decides that the Council shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner”.

Article 3: “Decides also that the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote the effective coordination and the mainstreaming of human rights within the United Nations systems”.

During the review stage of the Council’s performance, in 2011, Amnesty International stated: “The Human Rights Council’s mandate requires it to promote universal respect for the protection of all human rights and fundamental freedoms for all without distinction and to ‘address situations of violations of human rights, including gross and systematic violations’.Although there has been some recent modest improvement in the fulfillment of this element of the Council’s mandate, the overall record of achievement over the last five years has been poor at best” (IOR 41/001/2011).

If the Human Rights Council’s performance was “poor at best” when reviewed in 2011(5 years after it was setup),there is no doubt whatsoever that the Human Rights council did not have the capacity to fulfill its primary obligation to protect and prevent the gross violation committed by the LTTE in Sri Lanka, when the latter took nearly 350,000 civilians hostage in January of 2009 during the concluding stages of the separatist armed conflict in Sri Lanka. Therefore, the Human Rights Council has to take full responsibility and be held accountable for failing to prevent a violation so gross and of a scale so unprecedented; a failure that is fundamental to the mandate given by the General Assembly. In other words the Human Rights Council failed to fulfill the mission for which it was set up.

PROTECTION through PREVENTION

The key operative words in the remit to the Human Rights Council by the General Assembly are:

1. Promote human Rights (Article 2).

2. Protect Human Rights (Article 2).

3. Address situations of violations of human rights including gross and systematic violations (Article 3).

The real test of how effective the Human Rights Council is in promoting and protecting human rights lies in how successful it is in preventing human rights violations being committed. And furthermore, how prepared it is to address gross violations when they do happen. In regard to this aspect, Article 5 (f) of the mandate to the Council is of particular relevance.

Article 5 (f) of the mandate states : “Contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies”.

Despite Article 5 (f), there was no concerted dialogue and cooperation towards the prevention of human rights violations in the Sri Lankan case by the UN Human Rights Council (UNHRC) or anyone else. Nor did any of them do anything to “address” the situation created by the LTTE when they took over 350,000 Civilians hostage to be used as a human shield for the LTTE’s protection. If they did, it was “poor at best”. It is not in dispute that the LTTE did not release the civilians and that because of it the civilians were put in harm’s way. What is in dispute is who should be held accountable for not preventing such a gross violation, and even after it happened, what action was initiated separately or collectively, by the UNHRC, the International Community, the Tamil leadership and the Tamil diaspora dispersed in leading democracies,to separate the civilians from those engaded in the conflict. The fact that the combined effort of such an influential group failed to persuade the LTTE to release those not engaged in the conflict should be accepted by them all as a failure for which they should be collectively held accountable.

Over 800,000 people were killed in 100 days between April and May 1994 during the genocide in Rwanda. The Introduction to the Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda set up by the then Secretary General, Kofi Annan states: “The international community did not prevent the genocide, nor did it stop the killing once the genocide had begun. The failure has left wounds within Rwandan society and in the relationship between Rwanda and the international community, in particular the United Nations…The failure by the United Nations to prevent, and subsequently, to stop the genocide in Rwanda was a failure by the United Nations system as a whole”.

The United Nations system that operated during the genocide in Rwanda was the Human Rights Commission. The UN system that operated in 2009 when the LTTE took Civilians hostage was the Human Rights Council. In 2009 the Human Rights Council did not realize that the provision in its mandate for protection included not only prevention but also to meet emergencies. Unlike in Rwanda the Council had not 100 days, but nearly 5 months to marshal the combined influence of several democracies in which the Tamil diaspora resided to bring pressure on the LTTE to release the civilians. But this did not happen. The inability of the Human Rights Council to live up to the provisions in its mandate is the primary cause for the violations. For this the Council has to be held accountable.

SHAMEFUL CONDUCT of the UNSG and UN SYSTEMS

In complete contrast to the conduct of the former UNSG Kofi Annan, the current SG Ban-Ki-Moon appointed a panel euphemistically called an Advisory Panel to address Accountability in Sri Lanka. This panel consisted of individuals “external to the organization”; a practice not permitted by Article 100 Clause 1. Which states: 1. “In the performance of their duties the Secretary General and the staff shall not seek or receive instructions from any government or from any other authority external to the organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the organization.

2. “Each member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary General and the staff and not to seek to influence them in the discharge of their responsibilities”.

Therefore not only did the present SG appoint an Advisory Panel external to the UN,the report prepared by the Panel mysteriously was made public thereby violating the need to confine its findings strictly within the UN system. Furthermore, although the mandate to the Panel, as stated by the SG at a press conference in New York in March 2010, was to: “advise me on the standards,benchmarks and parameters based on international experience” the Panel submitted a report stating that they had “…found credible allegations of war crimes by both the government and the LTTE and recommended the establishment of an independent mechanism to investigate war crimes in Sri Lanka” (Congressional Research Service, “Sri Lanka: Background and U. S. Relations”, June 16, 2011,).

It is evident from the foregoing that the conduct of the UN and its systems created in regard to the separatist armed conflict in Sri Lanka is in sharp contrast to the professional manner in which the UN had conducted itself in regard to the disaster in Rwanda. The report submitted by the unofficial Advisory Panel appointed by the current UNSG, Ban Ki Moon, has become the gospel for all and sundry to hold only Sri Lanka accountable for the violations during the final stages of the separatist armed conflict.

What the UN and its systems do not want to admit is that had they acted in concert with the International Community, the Tamil leadership and the Tamil diaspora to separate the civilians from the LTTE and their combatants the violations to civilians could have been avoided. At least then, the conflict would have been limited to the parties to the conflict and the rules that would have applied would have been those applicable to rules of war namely, International Humanitarian Law. The UNSG and the UN system have to be held accountable for their serious lapses in the manner they addressed issues relating to the separatist armed conflict in Sri Lanka.

Unlike the Independent Inquiry setup by former UNSG Kofi Annan the present UNSG initiated an internal panel to review the conduct of the UN in Sri Lanka. This panel was headed by Charles Petrie and their report is titled: “Report on Secretary General’s Internal Review panel on United Nations’ Actions in Sri Lanka”. Paragraph 5 of the report subtitled “Systemic Failure states:

“…the Panel’s report concludes that events in Sri Lanka mark a great failure of the UN to adequately respond to early warnings and to the evolving situations during the final states of the conflict and its aftermath, to the detriment of hundreds of thousands of civilians and in contradiction with the principles and responsibilities of the UN. The elements of what was a systemic failure can be distilled into the following: (i) a UN system that lacked an adequate and shared sense of responsibility for human rights violations; (ii) an incoherent internal UN crisis-management structure which failed to conceive and execute a coherent strategy in response to early warnings and subsequent international human rights and humanitarian law violations against civilians…(iv) a model for UN action in the field that was designed for development rather than conflict responses; (v) the most senior position in the field graded at DI seniority that was below the heavy responsibilities required for the position and a corps of senior staff that did not sufficiently include the armed conflict, political, human rights and international humanitarian law and related management experience to deal with the challenge Sri Lanka presented, who were given insufficient support (vi) inadequate political support from Member States as a whole, notwithstanding bilateral efforts from all regions, and inadequate effort by the Secretariat to build such support.”

It is absolutely clear by the UN’s own admission cited above that it was not equipped to fulfill its mandate due to systemic failures within the UN and consequently failed to conceive and execute a coherent strategy to the detriment of hundreds of thousands of civilians. Given the fact that the circumstances presented during the final stages of the conflict were so extraordinarily complex and unique that to hold a single Member State solely accountable is to severely test natural justice. On the other hand,the fact that the UN with the resources at its command and access to those within the International Community, in particular the Co-Chairs, failed to develop a coherent strategy to separate the civilians taken hostage by the LTTE, must mean that they should be collectively held accountable for failing to prevent whatever human rights and humanitarian law violations that occurred during the final stages of the separatist armed conflict in Sri Lanka.

Therefore, despite the fact that the Sri Lankan Government has co-sponsored a resolution calling for a Sri Lankan judicial mechanism to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, the question of justifying such a mechanism in the background of failures of multiple agencies should be revisited. The need to revisit is because it is beyond all doubt that violations occurred because the UN and the International Community who jointly had the resources and the experience, failed to prevent violations.

CONCLUSION

The mandate of the 2006 UN appointed Human Rights Council is to promote and protect human rights and to “Contribute, through dialogue and cooperation towards the prevention of human rights violations and respond promptly to human rights emergencies” (Article 5 (f) of A/RES/6/251). Implicit in the task of protecting is prevention. In recognition of this fact the summary of a Human Rights Rights Council resolution states:

“In resolution 24/16 the Human Rights Council requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to draft a study on the prevention of human rights violations and its practical implementations, and to present the study to its thirtieth session. As requested in the resolution, this study takes into account the outcome of the panel discussion on the role of prevention in the promotion and protection of human rights, held at the twenty-seventh session of the Council”.

“This study seeks to provide content to the concept of prevention of human rights violations, identify practical means through which to prevent violations, and highlight the role of international and regional stakeholders”.

The Human Rights Council has taken 10 years to realize that because prevention is an integral part of its mandate there is a compelling need to do something about it. However, considering the extraordinarily complex and unique situation in January 2009 in Sri Lanka the least the UNSG could have done to prevent human rights violations when the LTTE took nearly 350,000 civilians hostage was to have visited Sri Lanka and to have appealed to the LTTE to release the hostages instead of coming one week after the conflict ended in May 2009 and talk about addressing accountability. This single fact would have galvanized the global community to bring pressure on the LTTE to release the hostages. The fact that the UN failed is a crying shame for which they should take full responsibility and be held accountable.

Having failed to prevent violations the Human Rights Council is now pushing for a judicial mechanism to investigate culpability for violations committed during the separatist armed conflict. Since there is no guarantee that the accountability process would not revive ethnic tensions, proceeding with it is a risky prospect. Coupled with this the gradual dismantling of the presence of the security forces in the North would encourage frustrated unemployed youth to resort to measures that would precipitate recurrence. Therefore, the only prudent measure the UN could adopt is to accept its failures as they did in Rwanda and abandon the accountability process and focus fully on reconciliation and non-recurrence.

Having failed in Rwanda in 1994 and Sri Lanka in 2009 the UN and its systems have taken 10 years to accept that prevention is implicit in the mandate to protect human rights. Having done so no one knows how long the Council would take to study and recommend how to prevent human rights violations and how to cope with emergencies. In the meantime the Council would hold Member States accountable notwithstanding the absence of guidelines for preventing human right violations. However, it has to be accepted that no military manuals exist nor could fresh manuals be developed by the Council to meet situations as extraordinarily complex and unique as in Sri Lanka. In such instances, the member State should not be the only party to be held accountable for whatever outcomes.

To resolutely pursue an accountability process despite the unprofessionalism of the UNSG Ban Ki Moon and the ackknowledged inadequacies and incompetence within the UN systems to meet emergencies as occurred in Sri Lanka,is unacceptable to the People of Sri Lanka and to the security forces who sacrificed life and limb to restore the territorial integrity of their beloved country; a right granted by all universal instruments. Therefore, in the absence of a monitor to appeal against the injustice of the monitor for human rights the only recourse open is to bring global attention to the injustice that is being perpetrated on Sri Lanka by the UN and the Human Rights Council.

Neville Ladduwahetty

July 24, 2016.